Conflicting rights: possession of a property sold in an auction which was occupied by the wife and children of the debtor in accordance with the separation ruling

17 January 2011

The courts of first and second instance rejected the claim to repossess the property sold in a foreclosure proceedings auction originating from the husband’s debts and occupied by the mortgage debtor’s wife and children by virtue of the separation ruling. However, in the end the Civil Chamber of the Supreme Court, in their judgement of October 8, 2010, overturned the prior judgements and determined that the wife’s right of use is not a property right but rather a family right and that since the wife had consented to the mortgage prior to the separation, the debtor’s credit claim therefore took precedence over her right of use.

The Court of First Instance had rejected the claim based on their view that the wife had a property right to usage of the home which allowed her to possess the property (ius possidendi) as a tenant and so with the inherent legal protections alongside those of the owner. The Court of First Instance had also rejected the claim based on the fact that the use of the home was granted prior to the foreclosure proceedings and therefore the acquisition was posterior.

In addition, the County Court upheld the first instance ruling granting preference to the wife’s right to reside in the family home over the awardee as they considered that the buyer had acted in bad faith and with a lack of diligence as the edicts had shown that the home was occupied and that the wife was not a beneficiary under the loan.

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